When a subjective belief can fulfill an objective test
A NEW decision of the Employment Appeal Tribunal (Pilkington UK Ltd v Jones  EAT 90) confirms that a respondent’s belief that a claimant is doing something (whether or not that belief is correct) can amount to a ‘something arising’ for the purposes of a claim under section 15 of the Equality Act 2010.
Mr Jones had worked for Pilkington, a glass manufacturer, since 1983 and had risen to become a Team Leader. Back in the 1980s he had developed Hodgkin’s Lymphoma and had been treated with high doses of radiotherapy. Although this treatment enabled him to go into remission, he later developed a problem with shoulder pain as a side effect of the radiotherapy drugs, and developed a condition known as radiation-induced neuropathy. He was unable to continue in his normal role at work, and developed mental health issues arising out of his physical disability and associated pain.
Although initially placed on light duties, in late 2018 he went off on long-term sickness absence. While off sick, he was seen wearing work boots and the Respondent became concerned that he was working elsewhere whilst receiving sick pay. After an investigation, Pilkington concluded he had been undertaking physical activity on a farm whilst off sick, and dismissed him for gross misconduct.
Mr Jones brought claims of unfair and wrongful dismissal, and discrimination on the grounds of disability contrary to section 15 EqA. All his claims succeeded at Tribunal.
The Respondent appealed against the finding that the s15 claim was made out on a number of grounds, focusing on the analysis of the ‘something arising’. The Tribunal had found that the ‘something arising’ was the Respondent’s belief in his physical activity while off sick, but had rejected what is much more commonly found to be a ‘something arising’, namely, the Claimant’s sickness absence itself.
As HHJ Wayne Beard observed in the EAT Judgment, “In most cases it would be possible to point to an external factor separate from the mind of the decision maker which arises from the disability. The person who is absent due to disability and is dismissed for absence, being a paradigm example. This is an unusual case because the ET specifically rejected the external factors which were advanced by the Claimant as the ‘something’ arising” (paragraph 28).
HHJ Beard noted that there are two causal relationships in any analysis of a s15 claim: the something arising from the disability, and secondly, the consequential treatment that is unfavourable. The first is an objective analysis, the second a subjective analysis. A finding that a Respondent’s belief was the ‘something arising’ is at first sight surprising, because a belief is a subjective state of mind of the individual holding that belief. But the EAT found that there can be an objective finding that a particular state of mind arises from the disability: “If there is knowledge of a disability it is easy to conclude that any belief about that disability arises from that knowledge. That means that either an accurate or an erroneous belief, drawn from a knowledge of the existence of that disability, would be a ‘something’ arising from the disability. Although that belief is subjectively held, it can be objectively recognised in the same way that a subjective intent can be objectively observed from surrounding facts. On that basis a belief could be properly categorised as something arising from disability” (paragraph 29).
The EAT also concluded that the Tribunal would have been entitled to conclude that Mr Jones’ sickness absence was the ‘something arising’ from his disability, regardless of its finding about the Respondent’s state of mind, because it was the reason for the surveillance carried out on him and provided the context in which the decision to dismiss was made.
The EAT also rejected the Respondent’s argument that the Tribunal had relied on a chain of causation that had been stretched too far to support its conclusions. The EAT held that this was not a case where the analysis of a chain of causation was helpful, as it does not fit a situation which deals with a subjective state of mind. Instead the subjective decision to dismiss relied on the sickness absence and a number of other pieces of information, including the erroneous beliefs the Respondent held about Mr Jones’s disability (paragraph 30).
Finally the Judge accepted, as the Respondent had argued, that the Tribunal had incorrectly stated the law in part of its reasoning, by reversing the causative requirements of the two tests under s15 EqA. However, the EAT concluded that this was an “infelicitous expression” and that the Tribunal must in fact have understood the law as it had correctly stated the law elsewhere in its Judgment (paragraph 33).
The appeal was dismissed.
The Respondent was represented by Catherine Urquhart, who was instructed by Brabners LLP.
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